What happens to the right of custody if the mother, who is entitled to it, waives her right?
Chapter on Who is More Entitled to Child Custody
Al-Mughni
Book of Maintenance (Nafaqāt)
Primary text
If the mother waives her right to custody while being entitled to it, there are two views. The first view holds that custody transfers to the father because the mother's right is derived from him; thus, her waiver causes the derived rights to fall. The sounder view states that custody transfers to the maternal grandmother (the mother of the mother). This is because the father is considered farther removed, and custody does not transfer to a farther relative if a closer one exists. This aligns with the principle that custody does not transfer to the sister, and the fact that the grandmother's right stems from the mother does not nullify the grandmother's right if the mother waives hers, similar to how it remains if the mother loses custody due to marrying a non-relative or other disqualifications.
Supporting text
One view suggests that if the father waives his right to custody, there are two opinions regarding whether the right of his own mother (the paternal grandmother) is also waived.